According to Article 16.1, the licensing conditions of applications owned by Public Administrations and that can be made available for other Public Administrations or for the citizens, must allow the free use/reuse of these applications. Licensing conditions must also exclude the software appropriation by a third party and protect the administration from liability, support and warranty obligations.
There is no general obligation to distribute all Public Sector software: this is left to the appreciation of the administration (depending on the interest and potential reusability of the solution by other public sector agencies and by the civil society). However, if the distribution is decided, it must be under open source conditions (combined with strong copyleft conditions for avoiding the exclusive appropriation that would happen if the software could become proprietary).
Article 16.2 provides precisions about licensing conditions:
“For the applications declared as open source, administrations will use licences which assure that shared programmes, data or information:
a) Can be executed for any purpose.
b) Let its source code be known.
c) Can be modified or improved.
d) Can be redistributed to other users with or without changes if the derived work keeps these four guarantees.”
On point a), it must be noted that “any purpose” does not exclude commercial use of software released by the Public Administration, as long there is no exclusive appropriation of the software by any commercial body.
Last, Article 16.3 provides that in order to achieve the aim defined above “the European Union Public Licence (EUPL) will be applied, without prejudice of other licences that can guarantee the same rights stated in the paragraphs 1 and 2."
This means that, by default (and by choice when it is appropriate), the Administration will distribute its software under the terms of the EUPL (the OSI approved licence which has the same value in 22 European languages). Alternatively (and by obligation, in case the distributed application is a derivative of some existing work received under a strong copyleft licence as the Gnu/GPL), the administration can use another strong copyleft licence ensuring both the four freedoms defined in paragraph 2 above and the condition of non-appropriation by a third party.
The Royal Decree validates and complements the practice initiated by the Spanish ICT agency Red.es. As the applications owned by Public sector are often provided by contractors that are selected after a call for tender, it was useful to prevent licence conflicts that make impossible the distribution of the application (i.e. when merging two FLOSS components in a combined work and when their licensing conditions are both copyleft and incompatible).
For this purpose, section 1.1.2 of the Red.es specific technical software procurement conditions provides:
"In case the contractor integrates in the development that is the object of the contract, modules or elements owned by third parties, he must first obtain from the legal owner the licences and rights necessary to transfer the ownership of the development to Red.es, which will submit it, including the elements that are performed under the contract (such as fonts, dll, scripts, etc..) to the public licence EUPL. In any case the total and final result of the development and the overall project will be subject to a licence EUPL."
The aim of this provision is to take Interoperability into account integrally, from the conception of the service, making candidate contractors aware that the application (in case it is a combined work resulting of the project and including multiple source provided components) must be distributed as a whole under the EUPL licence. This makes clear from scratch for contractors that – in addition to their own production – they can integrate existing FLOSS components licensed under a non-copyleft licence (for example the BSD) or those licensed under a moderated copyleft licence (for example the LGPL). They can also make use of components covered by copyleft licences that are interoperable, meaning that the covered components may be linked in a combined work distributed as a whole under the EUPL. This is the case when components are covered by the Eclipse licence, or by the OSL. At the contrary, they cannot make use and integrate existing components licensed under the GPLv2 and v3 in so far no interoperability provisions have been implemented by the GPL licences.
Article 17.1 of the Royal Decree implements a directory of all freely usable applications. This directory will be maintained by the General State Administration through its Technology Transfer Centre, and (according to article 17.2) it will be “linked with those maintained within the scope of the European Union”. This targets www.OSOR.eu (including the future evolutions of the repository), which has implemented a network of federated forges or repositories, providing access to more than 2000 projects distributed from OSOR and from any of the federated forges.
The use of the directory is established by Article 17.3: “Public Administrations will have to take into account the freely available solutions that can satisfy totally or partially the requirements of new systems and services or the improvements and updates of services that are already implemented.” This means that searching and considering the content of the repository is an obligation and a pre-requisite: prior than launching a new software development, the administration must check if the solution is not freely available somewhere.
To optimize the sharing process, the relevant ongoing development must be made public at early stage (and not only when the code is mature). Article 17.3 provides that Public Administrations will distribute the application source code "in development or finished with the aim of favouring the actions to share, reuse and collaborate, benefiting a better efficiency".
With all the above provisions, the ambition of the Spanish National Interoperability Framework implemented by the Royal Decree 4/2010 is to establish best practices that can leverage other public sector efforts in Spain (but also - why not, in other parts of Europe and in the world), creating all the necessary conditions to ensure an adequate level of organisational, semantic, legal and technical interoperability between systems and applications used by Public Administrations, while optimizing benefits in terms of reuse and effectiveness.
Patrice-Emmanuel Schmitz
Legal Counsel
Where to find more information?
The Royal Decree (text is available in English and in Spanish):
http://www.csae.mpr.es/csi/pg5e41_ingles.html
Presentation and comments from Miguel A. Amutio (in English)
http://www.epractice.eu/en/cases/eni
The National interoperability framework (in Spanish)